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Friday, 25 April 2014

Just before Easter, the Court of Appeal handed down its decision in Phil & Ted's Most Excellent Buggy Company Limited v TFK Trends for Kids GmbH, EWCA Civ 469 (apologies for the slight delay in this blogpost – the abundance of bunnies over the Easter break briefly distracted this Kat from monitoring Court of Appeal decisions.) The Patents County Court (as was, under the helm of HHJ Birss QC - now rebranded as the Intellectual Property Enterprise Court under HHJ Hacon) decision (reported on PatLit here) was upheld; TFK’s patent relating to a buggy module, convertible between seat and cot configurations (see figures right and below) remains revoked for lack of inventive step in view of Chinese Utility Model CN2739058Y (Goodbaby).

In giving the leading judgement, Kitchin LJ (with the Chancellor of the High Court and Sir Stanley Burnton concurring) quoted HHJ Birss QC in noting that

Many obviousness arguments start from an item of prior art which differs from a claim and contend it would be obvious to modify the prior art in such a way as to remove that difference. The obviousness case over Goodbaby is of a different character. Phil & Ted's argues that if a skilled person put the disclosure into practice, without any inventive step, the resulting product would be a product within the claim. The argument is not focussed on modifying the disclosure.

Despite TFK’s allegations of hindsight, Kitchin LJ sided with Phil & Ted’s in agreeing that Goodbaby would be considered by the skilled person to be a promising starting point for the invention. Thus, he (or she – Merpel) would seek to manufacture the Goodbaby product. In this Kat’s opinion, little paws for thought will have been necessary to reach this conclusion given that Goodbaby also relates to a buggy module convertible between cot and seat configurations (see figures right and below).

Both parties agreed that Goodbaby does not explicitly describe two of the features listed in claim 1.

1.The first relates to suspension means that allow the relative positions of the body support panels to be adjusted when switched between the seat/cot configurations. Whilst Goodbaby does not explicitly show or describe such suspension means, evidence from the skilled person indicated that, in practice, this feature must be present. At the first instance, HHJ Birss QC held that the obvious implementation (based on this evidence), would fall inside claim 1 and Kitchin LJ agreed, despite TFK’s protestations.

Why cats don't need buggies

2.The second missing feature from claim 1 was an “adapter” to allow reversible attachment of the cot/seat module to the buggy chassis. Though not stipulated in the claim, TFK argued that the only reason to include reversible attachment was to allow modules to be interchanged. This functionality would allow the cot/seat module to be swapped for a car seat, for example.
Goodbaby describes an attachment point for the cot/seat to the buggy chassis, but there is no mention of reversible attachment. Both parties agreed that Goodbaby would not be a promising starting point if looking to design a product which is interchangeable with other modules.
However, evidence from the skilled person indicated that it was well known at the priority date that being able to reverse the direction of the module was a desirable characteristic in this field. The seat can be arranged to face the parent or so that the child looks forwards. Many buggies had this feature including the industry leading products, and both instances decided that the skilled person would therefore include “adapters” in the obvious implementation of Goodbaby. Kitchin LJ explained this as “the fact that a particular modification may not be obvious for one purpose matters not if it is obvious for another.” Again, TFK’s allegations of hindsight were not accepted.

Purrrrfectly obvious to produce a Goodbaby
product

Thus the conclusion reached in both instances was that, in the implementation of Goodbaby, it would be purrrfectly obvious to manufacture a device according to claim 1 of TFK’s patent. No inventive step was present, and the patent was revoked.

This Kat predicts that the sheer volume of CN originating prior art will lead to many a catastrophe in litigation for patentees. Many patentees will be often be unaware of CN Utility models before action, and the language barrier may hinder complete analysis.

Little in this ruling surprised this Kat. Merpel however now contemplates launching a copycat product under the brand Merpel’s Most Purrfect Buggy Company. Watch this space…

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